SERVICES AGREEMENT
This Agreement is made as of July 22, 2002, by and among Equitable Life
Assurance Society, a New York corporation ("Recordkeeper"), on behalf of its
Separate Account 206 ("Separate Account"), Strong Investor Services, Inc.
("Company"), a Wisconsin corporation and the transfer agent for the investment
company(ies), or series or classes thereof identified on Schedule A to this
Agreement (the "Funds"), and Strong Investments, Inc. ("Distributors"), a
Wisconsin corporation and the distributor for the Funds.
PRELIMINARY STATEMENTS
A. Recordkeeper will, on a continuing basis, provide administrative services
and functions comprised of, but not limited to, recordkeeping, reporting and
processing services for certain group annuity contracts issued by Recordkeeper
to defined contribution plans and other employee benefit plans that meet the
requirements of Section 401 of the Internal Revenue Code of 1986, as amended
(the "Plan"), which services include processing and transfer arrangements for
the investment and reinvestment of Plan assets in Funds specified by an
investment adviser, sponsor or administrative committee of the Plan (a "Plan
Representative") generally upon the direction of Plan beneficiaries (the
"Participants").
B. Many of the services to be provided will relieve the Funds, Company
and/or their affiliates from performing functions or incurring costs that apply
when shares of the Funds are issued, held or redeemed directly by the ultimate
investors, rather than, as here, through intermediary plans.
C. Recordkeeper and Company desire to facilitate the purchase and redemption
of shares of the Funds, on behalf of the Plans and their Participants through
one or more omnibus accounts, which number shall be as mutually agreed upon by
the parties, in each Fund (each, an "Account") to be maintained of record by
Recordkeeper as nominee of the Plan, subject to the terms and conditions of this
Agreement.
D. Recordkeeper shall be the record-owner of the shares of the Funds.
AGREEMENTS
The parties agree as follows:
1. Performance of Services. Recordkeeper will perform the administrative
functions and services specified in Schedule B attached to this Agreement with
respect to the shares of the Funds owned by Recordkeeper on behalf of the Plans
and included in the Accounts, as may be requested by the Plans' Representative
(the "Services"). Nothing in this Agreement shall limit Recordkeeper's right to
engage one or more subcontractors or agents (each, a "Designee") to provide all
or any portion of the Services, but no such engagement shall relieve
Recordkeeper of its duties, responsibilities, obligations, agreements or
liabilities under this Agreement.
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2. The Accounts.
(a) Each Account shall be opened based upon the information contained in
Schedule C to this Agreement. In connection with each Account, Recordkeeper
represents, warrants and certifies that it is the owner of the shares in the
Funds on behalf of the Plans and is authorized to act on behalf of each Plan
effecting transactions in its Account and that the Account information
communicated to Distributors, including the taxpayer ID number, is accurate and
correct.
(b) The Fund shall designate each Account with an account number. Account
numbers shall be the means of identification when the parties to this Agreement
(each a "Party" and collectively the "Parties") are transacting in the Accounts.
The assets in the Accounts are assets of Recordkeeper's Separate Account and are
segregated from Recordkeeper's own assets. Company agrees to cause the Accounts
to be kept open on each Fund's books regardless of a lack of activity or small
position size except to the extent Recordkeeper takes specific action to close
an Account or to the extent the Fund's prospectus reserves the right to close
accounts which are inactive or of a small position size. In the latter two
cases, Company shall give at least sixty (60) days prior written notice to
Recordkeeper before closing an Account.
(c) Recordkeeper agrees to provide Company, (i) by the 15th day of each
month, with a report which indicates the number of Participants that
beneficially hold, through a Plan, Active Interests in each Account as of the
last day of the prior month (an "Active Interest" shall mean a Participant that
holds a positive dollar balance as of the last day of the prior month) and (ii)
any other information as Company or Distributors may reasonably request
concerning the Participants as may be necessary or advisable to enable Company
and Distributors to comply with applicable laws, including state "Blue Sky" laws
relating to the sales of Fund shares to the Accounts, subject to any applicable
confidentiality laws, rules and/or regulations.
3. Pricing Information. For each Fund, Distributors shall use its best
efforts to furnish to Recordkeeper prior to 6:00 p.m., Centrat Time, on each day
that such Fund is open for business (a "Business Day"): (a) the Fund's closing
net asset value for that day, and (b) the daily accrual for interest rate factor
("mil rate") for those Funds for which the mil rate is calculated. Distributors
shall communicate this information via facsimile or indirect or direct systems
access acceptable to Recordkeeper.
4. Price Errors.
(a) Notification. If an adjustment is required in accordance with a
Fund's then current policies on reimbursement ("Fund Reimbursement Policies") to
correct any error in the computation of the net asset value of Fund shares
("Price Error"), Company or Distributors shall notify Recordkeeper as soon as
practicable after discovering the Price Error. Notice may be made via facsimile
or via direct systems access and shall state the incorrect price, the correct
price and, to the extent communicated to the Fund's other shareholders, the
reason for the price change.
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(b) Underpayments. If a Price Error causes an Account to receive less
than the amount to which it otherwise would have been entitled, Company shall
make all necessary adjustments (subject to the Fund Reimbursement Policies) so
that the Account receives the amount to which it would have been entitled.
(c) Overpayments. If a Price Error causes an Account to receive more than
the amount to which it otherwise would have been entitled, Recordkeeper, when
requested by Company (in accordance with the Fund Reimbursement Policies), shall
use its best efforts to collect such excess amounts from the applicable
customers.
(d) Fund Reimbursement Policies. Company agrees to treat Recordkeeper's
customers no less favorably than Company treats other Fund shareholders in
applying the provisions of paragraphs 4(b) and 4(c).
5. Purchase and Redemption Orders.
(a) On each Business Day, Recordkeeper shall aggregate and calculate the
net purchase and redemption orders for each Plan from Participants or Plan
Representatives for shares of a Fund that it received prior to the close of
trading on the New York Stock Exchange (the "NYSE") (i.e., 3:00 p.m., Central
Time, unless the NYSE closes at an earlier time in which case such earlier time
shall apply), and communicate to Distributors the net aggregate purchase or
redemption order (if any) for each Account for such Business Day (which is also
sometimes referred to herein as the Trade Date). This communication shall be by
electronic transmission through direct access to Company's recordkeeping system,
telephone, or facsimile (or by such other means as the Parties to this Agreement
may agree to in writing) and shall be received by Distributors prior to 8:00
a.m., Central Time, on the next Business Day following the Trade Date. All
trades communicated to Distributors by this deadline shall be treated by
Distributors as if they were received by Distributors prior to the close of
trading on the Trade Date.
(b) Notice of Large Redemptions. Recordkeeper agrees to provide Company
and Distributors with at least seven (7) business days prior written notice of
any redemption in excess of ten (10) million dollars that is outside the normal
operation of a Plan, arising from a Recordkeeper driven redistribution of assets
within Recordkeeper's account with Company or a decision by the American Dental
Association to replace a Fund.
(c) No Conditional Orders. Recordkeeper shall not accept any conditional
orders. Distributors may in its sole discretion accept or reject an "as of"
order. If an "as of" order is accepted by Distributors, Recordkeeper agrees to
indemnify the applicable Fund for any damage to the Fund or its shareholders
caused by the acceptance of such order.
(d) Agency. Distributors appoint Recordkeeper as its agent for the
limited purpose of accepting purchase and redemption instructions from the Plans
and their Participants.
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6. Settlement of Transactions.
(a) Purchases. Recordkeeper will wire, or arrange for the wire of, the
purchase price of each purchase order to the custodian for the Fund in
accordance with written purchase instructions provided by Distributors to
Recordkeeper so that either (i) such funds are received by the custodian for the
Fund prior to 10:30 a.m., Central Time, on the next Business Day following the
Trade Date, or (ii) Distributors is provided with a Federal Funds wire system
reference number prior to such 10:30 a.m. deadline evidencing the entry of the
wire transfer of the purchase price to the applicable custodian into the Federal
Funds wire system prior to such time. Recordkeeper agrees that if it fails to
comply with conditions set forth in 6(a)(i) or (ii), then, at the option of
Distributors, (A) the transaction may be canceled, or (B) the transaction may be
processed at the next-determined net asset value for the applicable Fund after
purchase order funds are received. In such event, Recordkeeper shall indemnify
and hold harmless Company, Distributors and the applicable Fund from any
liabilities, costs and damages either may suffer as a result of such failure.
(b) Redemptions. Company shall use its best efforts to cause to be
transmitted, by wire transfer on the Business Day immediately following the
Trade Date, to such account as Recordkeeper shall direct in writing, the
proceeds of all redemption orders placed by Recordkeeper by 8:00 a.m., Central
Time, on the Business Day immediately following the Trade Date. If a redemption
order is received after 8:00 a.m., Central Time, payment for redeemed shares
will be made on the next following Business Day. Should Company need to extend
the settlement on a trade, it shall contact Recordkeeper to discuss the
extension; provided, however, that any such extension shall not relieve
Distributors of its settlement obligations under applicable law. For purposes of
determining the length of settlement, Company agrees to treat Participants who
beneficially hold shares of the Funds through the Plans no less favorably than
other shareholders of the Funds. Each wire transfer of redemption proceeds shall
indicate, on the Federal Funds wire system, the amount attributable to the bank
account number provided by Recordkeeper; provided, however, that if the number
of entries would be too great to be transmitted through the Federal Funds wire
system, Company shall, on the day the wire is sent, fax such entries to
Recordkeeper or, if possible, send via direct or indirect systems access until
otherwise directed by Recordkeeper in writing.
7. Maintenance of Records.
(a) Recordkeeping and administrative services to Participants shall be
the responsibility of Recordkeeper and shall not be the responsibility of the
Funds, Company or Distributors. Neither the Funds, Company nor Distributors
shall maintain separate accounts or records for the Participants. Recordkeeper
shall maintain and preserve all records as required by law to be maintained and
preserved in connection with providing the Services and in making shares of the
Funds available to the Plans.
(b) Upon the reasonable request of a Party (the "Requesting Party") to
another Party (the "Requested Party"), the Requested Party shall provide the
Requesting Party with copies of all the historical records relating to
transactions contemplated under this Agreement as are maintained by the
Requested Party in the ordinary course of its business, and as may enable
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the Requesting Party or its representatives, including without limitation its
auditors or legal counsel, to (i) monitor and review the Services, (ii) comply
with any request of a governmental body or self-regulatory organization or the
Plans, (iii) verify compliance with the terms of this Agreement, (iv) make
required regulatory reports, or (v) perform general customer supervision.
Recordkeeper agrees that it shall permit Company and Distributors or
representatives of either to have reasonable access to its personnel and records
in order to facilitate the monitoring of the quality of the Services and to
verify to Company's reasonable satisfaction that all purchase and redemption
orders aggregated for each Trade Date were received by Recordkeeper or its
Designees prior to the close of trading on the NYSE on such Trade Date.
(c) The Parties agree to cooperate in good faith in providing records to
one another pursuant to this Section 7.
8. Account Activity and Distribution Information.
(a) Distributors and/or Company shall provide Recordkeeper (i)
confirmations of Account activity the following Business Day after each day on
which a purchase or redemption of Fund shares is effected for an Account, (ii)
statements detailing activity in each Account no less frequently than monthly,
and (iii) other information as may be reasonably requested by Recordkeeper.
(b) As to each Fund, Company or Distributors shall provide Recordkeeper
with all distribution announcement information as soon as it is announced by
each Fund. The distribution information shall set forth ex-dates, record date,
payable date, distribution rate per share, record date share balances, cash and
reinvested payment amounts and all other information reasonably requested by
Recordkeeper. Where possible, Company or Distributors shall provide Recordkeeper
with direct or indirect systems access to Company's systems for obtaining such
distribution information.
(c) Company shall furnish to Recordkeeper on payable date any dividends
or capital gain distributions payable on the Fund shares no later than 3:00 pm
Central Time. Recordkeeper hereby elects to receive all such dividends and
distributions as are payable on a Fund's shares in additional shares of that
Fund. Recordkeeper reserves the right to revoke this election and to receive all
such dividends and capital gain distributions in cash. Company shall notify
Recordkeeper of the ex dividend date and the payable date for the entire year by
January of every calendar year.
9. Proxies. Recordkeeper shall, at its expense, distribute, or arrange for
the distribution of, all proxy material furnished by the Funds to each Plan and,
if applicable, vote each Plan's shares as directed by the Plan Representatives.
Recordkeeper shall not be responsible for any expenses in connection with
tabulating the votes. Recordkeeper and its agents shall in no way recommend
action in connection with or oppose or interfere with the solicitation of such
proxies.
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10. Fund Expenses. Recordkeeper shall not bear any of the expenses for the
cost of registration of the Funds' shares, preparation of the Funds'
prospectuses, proxy materials and reports, or the preparation of other related
statements and notices required by law.
11. Plan and Participant Communications.
(a) Company and Distributors shall, as applicable, provide on a timely
basis in bulk to Recordkeeper or its authorized representative, at a single
address and at no expense to Recordkeeper, the following shareholder
communications materials prepared for circulation to shareholders of record of a
Fund in quantities requested by Recordkeeper which are sufficient to allow
mailing thereof by Recordkeeper or a Plan Representative and to all
Participants: proxy or information statements, annual reports, semi-annual
reports, and all updated prospectuses, supplements and amendments thereof.
Neither the Funds, Company nor Distributors shall be responsible for the cost of
distributing such materials to Plan Representatives or Participants.
(b) If so requested by Recordkeeper, Company or Distributors shall use
its best efforts to review sales literature and other marketing materials
prepared by Recordkeeper which relate to the Funds, Company or Distributors for
factual accuracy as to these entities, provided that Company or Distributors is
provided at least five Business Days to review the materials. Neither Company
nor Distributors shall review the materials for compliance with applicable laws.
Notwithstanding the foregoing, Recordkeeper shall provide Company with copies of
all sales literature and other marketing materials which refer to the Funds,
Company or Distributors within five Business Days after their first use,
regardless of whether Company or Distributors has previously reviewed the
materials. If so requested by Company or Distributors, Recordkeeper shall cease
to use any sales literature or marketing materials which refer to the Funds,
Company or Distributors that Company or Distributors determines to be inaccurate
or misleading.
(c) Neither Company, the Funds nor Distributors shall give any
information or make any representations on behalf of Recordkeeper or concerning
Recordkeeper, each Account, or the Plans other than the information or
representations contained in a registration statement, prospectus or SAI for the
Plans, as such registration statement, prospectus and SAI may be amended or
supplemented from time to time, or in published reports pertaining to the Plans
which are in the public domain or approved by Recordkeeper for distribution to
Participants, or in sales literature or other promotional material approved by
Recordkeeper, except with the prior written permission of Recordkeeper.
Recordkeeper agrees to respond to any request for approval within 10 business
days of receipt of the request.
12. Compliance with Laws. Company, Distributors, Recordkeeper and their
Designees shall comply with all laws, rules and regulations applicable to them
in connection with the performance of each of their respective obligations under
this Agreement, or applicable to the performance of each of their respective
businesses.
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13. Indemnification.
(a) Recordkeeper shall indemnify, defend and hold harmless Company,
Distributors and each Fund and each of their affiliates, directors, officers,
employees and agents and each person who controls them within the meaning of the
Securities Act of 1933, as amended ("Company Indemnitees") from and against any
and all losses, claims, damages, liabilities and expenses (including reasonable
attorney's fees) they incur ("Losses") insofar as such Losses arise out of or
are based upon (i) Recordkeeper's or its Designees' negligence, willful
misconduct or violation of applicable law in the performance of its duties and
obligations under this Agreement, (ii) any breach by Recordkeeper or its
Designees of any material provision of this Agreement, (iii) adherence to
instructions that Company or Distributors reasonably believes were originated by
authorized representatives of Recordkeeper, and (iv) any material breach by
Recordkeeper or its Designees of a representation, warranty or covenant made by
it in this Agreement (including the failure to wire funds or provide the Federal
Funds reference number thereof by the deadline established in Section 6(a).
Recordkeeper shall also reimburse Company Indemnitees for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending against such Losses. This indemnity agreement is in addition to any
other liability which Recordkeeper may otherwise have.
(b) Company and Distributors shall indemnify, defend and hold harmless
Recordkeeper and each of its affiliates, directors, officers, employees and
agents and each person who controls it within the meaning of the Securities Act
of 1933, as amended, (the "Recordkeeper Indemnitees") from and against any and
all Losses insofar as such Losses arise out of or are based upon (i) Company's
or Distributors' or their designees' negligence, willful misconduct or violation
of applicable law in the performance of their duties and obligations under this
Agreement (ii) any breach by Company or Distributors or their designees of any
material provision of this Agreement, (iii) any untrue or alleged untrue
statement of a material fact, or any omission to state a material fact required
to be stated therein, contained in the Fund Registration Statement, Fund
prospectus, Fund statement of additional information or any sales literature or
promotional material or other information furnished to Recordkeeper (or any
amendment or supplement to any of the foregoing), in writing, for inclusion in
Plan prospectus, SAI or sales materials, or otherwise for distribution to the
Participants or prospective participants, or their Designees and (iv) any
material breach by Company or Distributors of a representation, warranty or
covenant made in this Agreement; (v) Company and Distributors shall also
reimburse Recordkeeper Indemnitees for any legal or other expenses reasonably
incurred by them in connection with investigating or defending against such
Losses. This indemnity agreement is in addition to any other liability which
Company and Distributors may otherwise have.
(c) Promptly after receipt by a Party entitled to indemnification under
this Section 13 (an "Indemnified Party") of notice of the commencement of any
litigation, investigation, action, claim or proceeding, such Indemnified Party
shall, if a claim in respect thereof is to be made against the indemnifying
party under this Section 13 (the "Indemnifying Party"), notify the Indemnifying
Party of the commencement thereof; but failure to notify the Indemnifying Party
of any such claim shall not relieve the Indemnifying Party from any liability
which it may have to the Indemnified Party against whom such action is brought
under the
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indemnification provision of this Section, except to the extent that the failure
to notify results in the failure of actual notice to the Indemnifying Party and
such Indemnifying Party is damaged as a result of failure to give notice. In
case any such action is brought against any Indemnified Party, and it notified
the Indemnifying Party of the commencement thereof, the Indemnifying Party shall
be entitled to participate therein and, to the extent that it may wish, assume
the defense thereof, with counsel satisfactory to such Indemnified Party. After
notice from the Indemnifying Party of its intention to assume the defense of an
action, the Indemnified Party shall bear the expenses of any additional counsel
obtained by it, and the Indemnifying Party shall not be liable to such
Indemnified Party under this Section 13 for any legal or other expenses
subsequently incurred by such Indemnified Party in connection with the defense
thereof other than reasonable costs of investigation. The Indemnified Party may
not settle any action without the written consent of the Indemnifying Party. The
Indemnifying Party may not settle any action without the written consent of the
Indemnified Party unless such settlement completely and finally releases the
Indemnified Party from any and all liability. In either event, consent shall not
be unreasonably withheld.
(d) In no event shall an Indemnifying Party be liable under the
indemnification provisions contained in this Agreement to any individual or
entity with respect to any Losses that arise out of or result from a breach by
an Indemnified Party of any representation, warranty, and/or covenant hereunder.
(e) A successor by law of the Parties to this Agreement shall be entitled
to the benefits of the indemnification contained in this Section 13. The
indemnification provisions contained in this Section 13 shall survive any
termination of this Agreement.
14. Fees.
(a) In consideration of the Services to be provided by Recordkeeper to
Company pursuant to this Agreement and the assumption by Recordkeeper of all of
its other obligations under this Agreement, and in order otherwise to
appropriately recognize the relative rights and responsibilities of the Parties
hereto, Company shall calculate and pay and Recordkeeper shall be entitled to
receive from Company the fees set forth in Schedule A to this Agreement (the
"Fees"). Each of Company and Recordkeeper represent to one another that it does
not intend these payments primarily to result in the sale of securities, for
purposes of Rule 12b-l(a)(2) under the Investment Company Act of 1940. The
Parties further agree that the Fees are primarily for shareholder servicing and
other administrative services provided by Recordkeeper and do not constitute
payment in any manner for investment advisory, distribution, trustee, or
custodial services. All Fees shall be considered final unless disputed by
Recordkeeper in writing within 60 days of the receipt.
(b) If requested in writing by Company, and at Company's expense,
Recordkeeper shall provide to Company, by February 14th of each year, a "Special
Report" from a nationally recognized accounting firm reasonably acceptable to
Company which substantiates for each month of the prior calendar year: (i) the
number of open accounts maintained by Recordkeeper on the last day of each month
which held shares of each Fund for which the fee provided for in this Section 14
was received by Recordkeeper, (ii) that any fees billed to Company for such
month were accurately determined in accordance with this Agreement, and
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(iii) such other information in connection with this Agreement as may be
reasonably requested by Company.
15. Representations and Warranties.
(a) Company and Distributors. Company and Distributors each represents
and warrants to Recordkeeper that:
(i) It has full power and authority under applicable law, and has
taken all action necessary, to enter into and perform this Agreement and the
person executing this Agreement on its behalf is duly authorized and empowered
to execute and deliver this Agreement;
(ii) This Agreement constitutes its legal, valid and binding
obligation, enforceable against it in accordance with its terms;
(iii) No consent or authorization of, filing with, or other act by or
in respect of any governmental authority is required in connection with the
execution, delivery, performance, validity or enforceability of this Agreement;
(iv) The execution, performance and delivery of this Agreement shall
not result in it violating any applicable law or breaching or otherwise
impairing any of its contractual obligations;
(v) The Funds are, and shall be, registered as investment companies
under the Investment Company Act of 1940, or series or classes thereof, and Fund
shares sold by the Funds are, and shall be, registered under the Securities Act
of 1933, in each case;
(vi) The registration statement under the 1933 Act for the Fund and
the registration statement under the 1940 Act for the Fund will be amended from
time to time as required in order to effect the continuous offering of the Fund
or as may otherwise be required by applicable law; and
(vii) Although the purposes of and consideration for the Fees payable
by Company to Recordkeeper pursuant to this Agreement are as set forth elsewhere
in this Agreement, the rate of the Fees paid will be based primarily on the
amount of cost savings that will accrue to Company as a result of Recordkeeper's
performance of the Services.
(b) Recordkeeper. Recordkeeper represents and warrants to Company and
Distributors that:
(i) It has full power and authority under applicable law, and has
taken all action necessary, to enter into and perform this Agreement and the
person executing this Agreement on its behalf is duly authorized and empowered
to execute and deliver this Agreement;
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(ii) This Agreement constitutes the legal, valid and binding
obligation of Recordkeeper and is enforceable against Recordkeeper in
accordance with its terms;
(iii) No consent or authorization of, filing with, or other act by or
in respect of any governmental authority is required in connection with the
execution, delivery, performance, validity or enforceability of this Agreement;
(iv) The execution, performance and delivery of this Agreement shall
not result in Recordkeeper or any Designee violating any applicable law or
breaching or otherwise impairing any of its contractual obligations;
(v) It and each Designee is registered as a transfer agent pursuant
to Section 17A of the Securities Exchange Act of 1934, as amended (the "1934
Act") or is not required to be registered as such;
(vi) The arrangements provided for in this Agreement shall be
disclosed to the Plans;
(vii) It and each Designee is not and shall not be a "fiduciary" with
respect to the provision of the Services for any Plan as such term is defined in
Section 3(21) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), and Section 4975 of the Internal Revenue Code of 1986, as amended
(the "Code");
(viii) The receipt of the fees described in Section 14 of this
Agreement by Recordkeeper or any Designee and the provision of the Services to
the Plans under this Agreement by Recordkeeper or any Designee does not and
shall not constitute a non-exempt "prohibited transaction" as such term is
defined in Section 406 of ERISA and Section 4975 of the Code;
(ix) It and each Designee is registered as a broker-dealer under the
1934 Act and any applicable state securities laws, including any laws applicable
as a result of entering into and performing the Services set forth in this
Agreement, or is not required to be so registered;
(x) It and each Designee is authorized to act on behalf of each Plan
on whose behalf it is effecting transactions in the Account in connection with
the Services pursuant to an agreement with the Plan Representative and is
satisfied that the person or persons who signed Recordkeeper's or Designees'
contracts with the Plan were themselves properly authorized by the Plan and the
entity which they represent;
(xi) Recordkeeper acknowledges that (i) shares of the Fund, including
shares that fund the Plans, are owned by non-insurance company shareholders;
(ii) the Fund's Board of Directors will take action in accordance with what it
believes to bein the best interests of all Fund shareholders, including, but not
limited to, liquidating, dissolving or merging the Fund assets into another
registered open-end management investment company; and (iii) the Board will not
refrain from taking any such action or delay taking any such action due to any
regulatory requirements that may apply specifically to Recordkeeper and any
other insurance
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company shareholders, including, but not limited to, obtaining an order of the
Securities and Exchange Commission to permit a substitution of shares of another
fund for Fund shares, provided that, to the extent circumstances permit, Company
shall give Recordkeeper prior notice of any such action; and
(xii) Interests under the underlying Plan are and will be registered
under the Securities Act of 1933, as amended (the "1933 Act"), and are and will
be registered and qualified for sale in the states where so required.
16. Termination.
(a) Any Party may terminate this Agreement by providing 90 days'
prior written notice to the other Parties.
(b) Notwithstanding the foregoing, this Agreement may be terminated
in whole or as to any Fund by any Party (i) at any time by giving 30 days' prior
written notice to the other Parties in the event of a material breach of this
Agreement by any other Party or Parties that is not cured during such 30-day
period; and (ii) at any time by giving written notice to the other Parties: (A)
upon institution of formal proceedings relating to the legality of the terms and
conditions of this Agreement by the National Association of Securities Dealers,
Inc., the Securities and Exchange Commission or any other regulatory body
provided that the terminating Party has a reasonable belief that the institution
of formal proceedings is not without foundation and shall have a material
adverse impact on the terminating Party; (B) upon assignment of the Agreement in
contravention of the terms of this Agreement; (C) in the event shares of a Fund
are not registered, issued or sold in conformance with Federal law or such law
precludes the use of Fund shares as an underlying investment medium of the Plans
(prompt notice shall be given by either Party to the other in the event the
conditions of this provision occur); (D) as is required by law, order, or
instruction by a court of competent jurisdiction or a regulatory body or self
regulatory organization with jurisdiction over the terminating Party; and (E) at
the option of a Party, if such Party determines in its sole judgment exercised
in good faith, that non-terminating Party has suffered a material adverse change
in its business, operations or financial condition since the date of this
Agreement or is the subject of material adverse publicity which is likely to
have a material adverse impact upon the business and operations of the
terminating Party.
(c) In the event of termination of the Agreement, each Party's
obligations shall survive until no Active Interests participating in the Fund
are maintained in the Accounts; provided, however, that (i) Company shall have
no obligation to open new Accounts pursuant to Section 2(a), and (ii) Company's
obligation to pay the Fees shall survive for a period no longer than one year
from the date of termination (unless termination is the result of an event
described in Section 16(b)(i) or (ii)(A-D), in which case Company's obligation
to pay the Fees shall end as of the date of such termination). Participants who
hold an Active Interest in the Plan prior to termination of this Agreement shall
be permitted to reallocate investments in the Fund, redeem investments in the
Fund and/or invest in the Fund upon the making of additional purchase payments
under the existing Plan.
17. Governing Law. This Agreement shall be governed by and interpreted in
accordance with the internal laws of the state of Wisconsin.
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18. Amendment and Waiver. No provision of this Agreement shall be modified,
amended or waived except in writing and only when signed by all of the Parties
to this Agreement. No waiver of any provision of this Agreement shall be binding
unless in writing and executed by the Party granting such waiver. Any valid
waiver of a provision set forth in this Agreement shall not constitute a waiver
of any other provision of this Agreement. In addition, any such waiver shall
constitute a present waiver of such provision and shall not constitute a
permanent future waiver of such provision.
19. Assignment. This Agreement shall be binding upon and shall inure to the
benefit of the Parties and their respective successors and assigns. This
Agreement may not be assigned or transferred by any Party without the prior
written consent of the other Parties hereto, which consent shall not be
unreasonably withheld; provided, however, that either Party may assign its
rights and obligations pursuant to this Agreement to any entity that controls,
is controlled by or is under common control with that Party.
20. Entire Agreement. This Agreement contains the full and complete
understanding between the Parties with respect to the transactions covered and
contemplated under this Agreement, and supersedes all prior agreements and
understandings between the Parties relating to the subject matter hereof,
whether oral or written, express or implied.
21. Relationship of Parties; No Joint Venture. Except for the limited
purpose provided in Section 5(e), all Services performed under this Agreement
by Recordkeeper shall be as an independent contractor and not as an employee or
agent of Company, Distributors or the Funds, and none of the Parties shall hold
itself out as an agent of any other Party with the authority to bind such Party.
Neither the execution nor performance of this Agreement shall be deemed to
create a partnership or joint venture by and among any of the Parties.
22. Operations of Funds. In no way shall the provisions of this Agreement
limit the authority of any Fund, Company or Distributors to take any action as
it may deem appropriate or advisable in connection with all matters relating to
the operation of such Fund and the sale of its shares. In no way shall the
provisions of this Agreement limit the authority of Recordkeeper to take any
action as it may deem appropriate or advisable in connection with all matters
relating to the provision of Services or the shares of funds other than the
Funds offered to the Plans.
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23. Notices. All notices under this Agreement shall be given in writing (and
shall be deemed to have been duly given upon receipt) by delivery in person, by
facsimile, by registered or certified mail or by overnight delivery (postage
prepaid, return receipt requested) to the respective Parties as follows:
if to Recordkeeper:
Equitable Life Assurance Society of the United States
1290 Avenue of the Americas
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
if to Company:
Strong Investor Services, Inc.
000 Xxxxxxxx Xxxxxxx
Xxxxxxxxx, XX 00000
Attention: General Counsel
Facsimile No.: (000)000-0000
if to Distributors:
Strong Investments, Inc.
000 Xxxxxxxx Xxxxxxx
Xxxxxxxxx, XX 00000
Attention: General Counsel
Facsimile No.: (000) 000-0000
24. Confidentiality. Each Party agrees to take all steps necessary to comply
with all applicable laws, rules and regulations (including, without limitation,
the Securities and Exchange Commission Regulation S-P) protecting the privacy of
consumer nonpublic personal financial information ("Consumer Information")
disclosed to each Party under this Agreement. Each Party agrees not to disclose
or use Consumer Information other than to carry out the purposes for which such
Consumer Information is disclosed or as otherwise permitted by law. In addition,
Distributor and Company agree that neither they nor their affiliates will use
any information about Participants, Plans, Plan Representatives or employers
that result from the relationship with Recordkeeper, other than as contemplated
by this Agreement, in connection with any offer to sell or solicitation of any
offer to buy any security or financial product service to or from any such
person or entity; provided that the provisions of this Section 24 shall not
prohibit Company or Distributors or any of their affiliates from utilizing for
any purpose such information if such information is obtained in any manner other
than as a result of this Agreement.
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25. Expenses. All expenses incident to the performance by each Party of its
respective duties under this Agreement shall be paid by that Party, except as
otherwise specifically set forth herein.
26. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same agreement.
27. Title Passage. All sales of shares hereunder are made, and title to
shares of the Funds shall pass, in Menomonee Falls, Wisconsin.
28. Non-Exclusivity. Each of the Parties acknowledges and agrees that this
Agreement and the arrangements described in this Agreement are intended to be
non-exclusive and that each of the Parties is free to enter into similar
agreements and arrangements with other entities.
STRONG INVESTOR SERVICES, INC.
/s/
-------------------------------------
Name:
Title: Assistant Secretary
STRONG INVESTMENTS, INC.
/s/
-------------------------------------
Name:
Title: Assistant Secretary
EQUITABLE LIFE ASSURANCE SOCIETY
ON BEHALF OF ITS SEPARATE ACCOUNT 206
/s/
-------------------------------------
Name:
Title: Assistant Vice President
14
SCHEDULE A
Funds and Fees
(b) The Funds subject to this Agreement and applicable annual fees are as
follows:
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SCHEDULE B -- The Services
To the extent required by each Plan or applicable law, Recordkeeper or its
Designees shall perform the following services which shall be the responsibility
of Recordkeeper and shall not be the responsibility of the Funds, Company or
Distributors:
1. Maintain records for each Plan which holds shares ("Shares") of any Fund in a
Recordkeeper account and for each Fund, which shall, without limitation,
include:
(a) Number of Shares;
(b) Date and price of purchases and redemptions (including dividend
reinvestments) and dates and amounts of dividends paid for at least the current
year to date;
(c) Name and address of each Participant, including zip codes and tax
identification numbers;
(d) Records of distributions and dividend payments, if applicable;
(e)Any transfers of Shares; and
(f) Such other records relating to the Plans or underlying Participants as
may be required by applicable law.
2. To facilitate the Plans' beneficial ownership of Shares, Recordkeeper shall
provide or arrange to provide adequate facilities and procedures to: (a)
establish and maintain Fund investments on behalf of the Plans within accounts
on Recordkeeper's transaction processing and recordkeeping system, and (b)
access the Plans' current Fund information including, but not limited to, Share
balances, dividend information and transaction history.
3. Recordkeeper's transaction processing system shall enable the Plans to
purchase, redeem and exchange shares of Funds available through Recordkeeper. If
Recordkeeper has established omnibus accounts, Recordkeeper shall facilitate the
settlement of Plan transactions in each Fund.
4. Recordkeeper shall credit employer contributions to individual Participant
accounts in accordance with the employer's instruction and invest such
contributions and other Plan assets in Shares of the Funds to the extent so
designated by the employer, Plan trustee or Participant.
5. Recordkeeper shall disburse or credit to the Plans and maintain records of
all proceeds of redemptions of Shares and all other distributions not reinvested
in Shares.
6. Recordkeeper shall prepare and transmit to the Plans and Participants,
periodic account statements showing, among other things, the total number of
Shares owned as of the statement closing date, purchases and redemptions of
Shares during the period covered by the statement, the net asset value of the
Funds as of a recent date, and the dividends and other distributions paid
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during the statement period (whether paid in cash or reinvested in Shares), and
individualized data for Participants.
7. Transmit to the Plans or the Participants prospectuses, proxy materials,
shareholder reports, and other information provided by Company, Distributors or
a Fund.
8. Maintain all account balance information for the Plans and daily and monthly
purchase summaries expressed in Shares and dollar amounts and transmit to each
Plan confirmations of purchase orders and redemption requests placed by each
Plan.
9. Prepare, transmit and file all federal, state and local government reports
and returns with respect to each account maintained on behalf of the Plans.
10. Use reasonable diligence to ensure that the purchase of Shares of a Fund by
Participants pursuant to this Agreement are in accordance with the terms of the
applicable Fund prospectus, including the minimum investment applicable to each
Fund.
11. Respond to Participants' inquiries.
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